Navtej Johar Singh vs. Union of India

THIS ARTICLE WAS WRITTEN BY ROHINI TONDARE, A STUDENT OF MAHARASHTRA NATIONAL LAW UNIVERSITY.

Navtej Johar Singh vs. Union of India

The case which gave equal right to everyone

From the earlier time LGBT communist people was always discriminated. People did not consider them as same as themselves and the equal right was not served. Equal rights in the manner, they didn’t have the right to choose the sexual intercourse partner of the same gender. Simply, similar gender sexual intercourse or homosexual intercourse was unnatural and unconstitutional.

FACT

Navtej Johar Singh was an Indian dancer. He belongs to LGBT community. When he came to know this, he filed a case for his rights stating Article 377 is unconstitutional.

JUDGEMENT

Five judge bench was set up for the judgement of Navtej Johar Singh Vs. Union of India including CJI. CJI said that ‘criminalizing carnal intercourse’ to be ‘irrational, arbitrary and manifestly unconstitutional’. It was also said that ‘choosing whom to be partner in sexual intimacies is not subjected to discriminatory behavior’. The judgement also highlightened that LGBT community has equal right of citizenship and protection under the law, without discrimination. This judgement overruled the KOUSHAL’S decision.

BACKGROUND

On 27 April 2016, constitutionality of section 377 of the Indian Penal Code was challenged by five people. The petitioners were dancer Navtej Singh Johar, Journalist Sunil Mehra, Chef Ritu Dalmia, Hoteliers Aman Nath and Keshav Suri and Businessman Ayesha kapur. In the pending curative petition in 2013, Koushal V. Naz case, supreme court had upheld the constitutionality of article 377. The Naz earlier had also been referred to the five-judge bench, but it was not considered.

Articles which are included in this case were:

ARTICLE 14:

Equality before law: The state shall not deny to any person. Equality before the law or the equal protection of the laws within the territory of India. Prohibition of discrimination on the grounds of religion, race, caste, sex or the place of birth place

ARTICLE 377:

 Unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, women or animal, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten year and shall also be liable to fine.

ARTICLE 15:

Prohibition of discrimination on the grounds of religion, sex, race, caste or place of birth.

(1) The state shall not discriminate against any citizens on the grounds only of religion, race, caste, sex, place of birth or any of them.

(2) No citizen shall on grounds only of religion, race, caste, sex, place of birth or any of them be subject to any disability, liability, restriction or condition with regard to

1. Access to shops, public restaurants, hostels and palaces of public entertainment: or
2. The use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of state funds or dedicated to the use of the general public.

(3) Nothing in this article shall prevent the state from making any special provision for women and children

(4) Nothing in this article or in clause (2) of article 29 shall prevent the state from making any special provision for the advancement of any socially and educationally Backward Classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

After the judgement, it was decided that the Article 377 of Indian Penal Code was unconstitutional.

As the Article 14 and Article 15 is prior than Article 377, Now constitutional allowed the same sex marriage, adaptation by same sex couples and inheritance right. And non-consensual sex (rape) remains criminal offence. After removal of Article 377, the same shall also applicable to Jammu and Kashmir.

KOUSHAL’S DECISION

The judgement was passed by justice G.S. Singhvi and justice S.J. Mukhopadhaya.  On 11 dec 2013, the judgement was passed, on the case Suresh Kumar Koushal and Anr. V. Naz Foundation and Ors. To declare article 377 of Indian constitution unconstitutional, they did not find enough reason. The judges also stated that ‘a miniscule fraction of the country’s population constitutes lesbians, gays, bisexual or transgenders’ and that the high court had erroneously relied upon international precedents “in its anxiety to protect the so-called rights of LGBT persons”. The Supreme Court of India set aside the 2009 judgement given by the Delhi High Court stating that judicial intervention was not required in this issue. It recriminalized sexual intercourse “against the order of nature”.

The KOUSHAL’S Decision was as-

        “In view of the above discussion, we hold that section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court is legally unsustainable”.

The Supreme court decided the constitutionality of Section 377 against the principles of equality, liberty, dignity under Article 14, 19 and 21.

1. Right to Equality and Non-Discrimination
2. Freedom of Expression
3. Right to Life and Personal Liberty

The court saw that section 377 discretionarily refuses people who participate in same sex connections. To prove this, the court noticed that section 377 characterizes and refuses people who take part in carnal intercourse against the order of nature to secure ladies and youngsters. Nonetheless, this target has no sensible nexus with the arrangement, as unnatural offenses have likewise been independently punished under Section 375 and the POSCO Act. Accordingly, the court held that the inconsistent treatment of LGBT people disregards Article 14. Further, the court held that Section 377 is obviously self-assertive as it doesn’t recognize consensual and non-consensual sexual demonstrations between grown-ups. This disregards Article 14, which is the actual premise of non-segregation. Every person has freedom of speech including LGBT. Every one can give their opinion and exchange of thought. LGBT communist people also have right of life. And they can live their life as everyone can with all rights and liberty. This case gave the judgement which serves equality, equal rights to LGBT communist people.

 Rights of LGBT communist people

• LGBT communist people has been considered legal since 2018.
• Constitution gave legal right to change the legal gender of transgender people (legislation passed by 2019) and a third gender people are recognised under degree of protection and welfare benefits but it varies by states.
• Many programmes have been set up like pension schemes, free operations in government hospitals, housing programmes and other welfare benefits to assist them.
• This people were legally granted voting rights as a third sex in 1994.